REGISTERED CONVEYANCING AND THE LAND LAW

DOIhttp://doi.org/10.1111/j.1468-2230.1949.tb00121.x
Publication Date01 Apr 1949
AuthorHarold Potter
REGISTERED
CONVEYANCING
AND
‘l’1.1
K
LAND
LAW
NOT
so
long ago
to
refuse a challenge was to be dubbed a coward.
Mr.
Hargreaves, in a learned review of
a
little book by the writer,’
has challenged the correctness
of
some suggestions put forward in
that and other books on a vital issue.
It
is conceived that the
greater the issue the greater the challenge. Nevertheless, in taking
up the gage we cannot hope
to
pledge a dogmatic rebuttal.
Those who have
read
the review closely, and
Mr.
Hargreaves’
views are always entitled to respect, will know that the ultimate
issue raised can be found in the last few sentences. We have taken
the liberty to repeat them
:
-
For
whom does land law exist?
For
the land owner and his
neighbours,
or
for the conveyancer
?
Put
in
this way there can
surely be only one answer to the question. Yet to the land
owner, what is important is the substantive nature of his rights
and duties; of those rights, the right to convey is merely one,
and the technical method
of
exercising that right is to him
of
secondary importance and a matter which hitherto he has been
content
to
leave in the hands of his technical advisers.
If
this
be
the true perspective, the time has surely long since passed
when land law could
be
considered in the main as a secretion in
the interstices
of
conveyancing.
This is a graver issue than appears
on
the surface. We do not
wish
to
pursue the widest issues here, though we may remark that
the law primarily exists for the community.
In
fact we approach
a
narrower field. The
land law
is wider than the conveyancer’s
land law, because
it
has been developed
in
other fields and by other
processes of reasoning. This does not mean that the conveyancing
land law does not still depend largely upon conveyancing machinery.
The proof of this is to be found very largely in the facts
of
conveyancing law which determine the interests and powers
of
owners and incumbrancers
of
interests in land.
It
is, therefore,
desirable before pursuing this fundamental question to examine the
bases on which the challenge was issued. We think that
Mr.
Hargreaves has not always understood the point we wished to make
and that he may be mistaken on some of the rules of law he has
laid down.
His criticism of the matter
of
the book reviewed appears to fall
under five heads, and in his view (i) the registered proprietor has
not
a
‘statutory estate’; (ii) ‘overriding interests’ is not an
essential branch
of
classification of interests in land; (iii) the powers
1
(1949)
19
Mod.L.R.
139:
review
of
The Principles
of
Land
Law
under
tho
Land Rsgistration
Act.
205

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